Wednesday, September 5, 2012

The Survey: Southern Pluralism

Over the past few weeks, I've used Hall, Finkelman, and Ely as a frame of reference for blogging the survey. Why not Presser & Zainaldin's Law & Jurisprudence in American History (St. Paul: West, 2006)? In terms of structure, Presser reads more like a casebook, with primary sources followed by notes citing relevant secondary literature. HFE, by contrast, focuses more heavily on simply presenting primary sources. Yet, HFE provides more coverage of the colonial era (Presser moves straight from England's trial of the seven bishops in 1688 to the trial of Peter Zenger in 1735), and HFE also provides more coverage of the South and race. In Presser, for example, there is a sizable section on slavery but little else save a brief discussion of Brown v. Board of Education followed by an excerpt from Herbert Wechsler's Neutral Principles article (pps. 895-911). HFE includes quite a bit more more, including a section on slavery as well as a section on the plight of civil rights and voting in the 1920s and 30s, followed by substantial coverage of Brown v. Board of Education, the Civil Rights Movement, and the emergence of diversity as a compelling state interest.

Let me pick up on this last point. Currently in the news thanks to Fisher v. Texas, the question of diversity is not mentioned in Presser, but is discussed in HFE, which explains Lewis F. Powell's endorsement of diversity in Bakke as "an alternative rationale for affirmative action that did not rest upon a showing of prior discrimination" (HFE, p. 508). This, I believe, is correct. More problematic is HFE's note on Grutter v. Bollinger, which claims that Justice O'Connor "endorsed the diversity rationale first set forth by Justice Powell in Bakke." (HFE, p. 513) While technically right, I believe that O'Connor actually changed Powell's definition, reframing it as an issue that was somehow related to the problem of racial injustice. See, for example, her comment that diversity "would no longer be necessary in twenty-five years" (HFE, p. 513). In a project that I'm finishing up this semester, I argue that Powell's notion of diversity had less to do with racial justice than with a line of thinking in the South that celebrated diversity as an antidote to equality. Early adherents to this theory included southern intellectuals like Robert Penn Warren and the Nashville Agrarians. In a recent book that -- I think -- supports my thesis, Robert Blakeslee Gilpin briefly discusses Warren, the Agrarians, and their views of John Brown, showing how they used Brown to demonstrate the North's tendency to embrace "abstract morality" over what they perceived to be historical accuracy (See Robert Blakeslee Gilpin, John Brown Still Lives! America's Long Reckoning with Violence, Equality, and Change (Chapel Hill: UNC Press, 2011). Though Gilpin does not get into the question of diversity, Warren's aversion to what he perceived to be northern abstractions stayed with him, ultimately leading him to identify himself as a "pluralist" who opposed the homogenizing influence of "the power state." Put simply, Warren saw in northern abstractions like racial equality an assault on particularity, individuality, and difference, carried out by an increasingly ominous federal government. Both he and Powell embodied something that I call southern pluralism, a view that embraces diversity but rejects equality.